1998 Biennial ReviewPart 76 Cable Television Service Pleading and Complaint Rules

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-54; FCC 98-348]

1998 Biennial Review--Part 76 Cable Television Service Pleading

and Complaint Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This Report and Order reorganizes and simplifies the

Commission's procedural rules for filing petitions and complaints

pursuant to part 76. The intended effect of these changes is to make

the part 76 rules more concise and easier to use.

DATES: These rules contain information collection requirements that

have not been approved by OMB. The Commission will publish a document

in the Federal Register announcing the effective date. Written comments

by the public on the proposed information collection requirements

should be submitted on or before April 12, 1999.

ADDRESSES: A copy of any comments on the information collections in

Secs. 76.6, 76.7, 76.8, 76.9, 76.10, 76.61, 76.914, 76.1003, 76.1302,

and 76.1513 should be submitted to Judy Boley, Federal Communications

Commission, Room C804, 445 12th Street, SW, Washington, DC 20554, or

via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Horan, Cable Services Bureau,

(202) 418-7200. For additional information concerning the information

collections contained herein, contact Judy Boley at 202-418-0214, or

via the Internet at [email protected].

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act:

This Report and Order has been analyzed with respect to the

Paperwork Reduction Act of 1995 (the ``1995 Act'') and found to impose

new or modified information collection requirements on the public. The

Commission, as part of its continuing effort to reduce paperwork

burdens, invites the general public to take this opportunity to comment

on the information collection requirements contained in this Report and

Order, as required by the 1995 Act. Public comments are due April 12,

1999. Comments should address: (a) Whether the proposed collection of

information is necessary for the proper performance of the functions of

the Commission, including whether the information shall have practical

utility; (b) the accuracy of the Commission's burden estimates; (c)

ways to enhance the quality, utility, and clarity of the information

collected; and (d) ways to minimize the burden of the collection of

information on the respondents, including the use of automated

collection techniques or other forms of information technology.

OMB Approval Number: 3060-XXXX (new collection).

Title: Part 76 Cable Television Service Pleading and Complaint

Rules.

Type of Review: New collection.

Respondents: Businesses or other for-profit entities.

Number of Respondents: 400.

Estimated Time Per Response: 4 hours to 40 hours.

Frequency of Response: On occasion.

Total Annual Burden to Respondents: 8,800 hours.

Total Annual Cost to Respondents: $1,204,000.

Needs and Uses: The procedural requirements set forth in this

proceeding describe the process for filing petitions and complaints

under part 76 of the Commission's rules. This information contained in

the petitions and complaints is part of the record used by the

Commission in its decision-making. Without the information, the

Commission would be unable to enforce its rules and would be

unresponsive to entities regulated by the Commission.

1. The Report and Order addresses the issues raised in the Notice

of Proposed Rulemaking in CS Docket No. 98-54, 63 FR 24145 (May 1,

1998) (``NPRM''), regarding the Commission's 1998 biennial regulatory

review of its regulations conducted pursuant to section 11 of the

Telecommunications Act of 1996. In the NPRM, the Commission sought

comments and proposals on how to achieve a streamlined complaint

process for part 76 pleadings.

2. Discussion. This Order implements several rule changes designed

to consolidate the procedural requirements for most part 76 filings.

These requirements are codified at Secs. 76.6 through 76.10 of the

Commission's rules. This Order also eliminates the provisions rendered

redundant by the amendments to the rules. Specifically, Sec. 76.6 is

adopted. This section contains the general pleading requirements for

all written submissions made pursuant to part 76. In addition,

Sec. 76.6 will require

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that all submissions be verified by the submitting party or by the

party's attorney. Further, each submission must contain a written

verification that the signatory has read the submission and to the best

of his or her knowledge, the submission is well grounded in fact and is

warranted by existing law or a good faith argument for the extension,

modification or reversal of existing law. Prior to this amendment not

all submissions pursuant to the part 76 rules required verification.

3. Section 76.7 is amended to provide a uniform filing format,

deadlines, and other procedural requirements which most pleadings filed

pursuant to part 76 will follow. Going forward, unless the rule in

question contains its own specific procedural guidelines, a party

seeking special relief, waiver of the Commission's rules, resolution of

a complaint, determination of effective competition, or resolution of a

disputed question relating to part 76 should file a petition pursuant

to, and follow the procedural rules set forth in Sec. 76.7. To the

extent a conflict is perceived between the general pleading

requirements of Sec. 76.7 and the procedural requirements of a specific

section, the procedural requirements of the specific section should be

followed.

4. To comport with its new generalized nature, those portions of

Sec. 76.7 which pertain only to must-carry complaints have been moved

to Sec. 76.61, thereby incorporating all unique procedural aspects of

must carry complaints in that rule. Section 76.61 is further amended to

merge the specific requirements of must-carry complaints filed by local

commercial television stations and must-carry complaints filed by local

noncommercial educational television stations in one rule.

5. The procedures regarding petitions for effective competition are

consolidated in Sec. 76.7. The result is that all effective competition

petitions filed pursuant to Sec. 76.7 will be placed on public notice

and have the same 20 day deadline to file comments or oppositions and

10 days to reply. Additionally, Sec. 76.7 is revised to set forth rules

providing for referrals to the referral of proceedings for an

adjudicatory hearing before an administrative law judge (``ALJ'').

6. Section 76.8 has been recast to provide that status conferences

may be convened at the discretion of Cable Services Bureau (``Bureau'')

staff for all part 76 proceedings. Section 76.9 is revised to set forth

rules providing for confidential treatment of proprietary information.

Section 76.10 is added to clarify and describe the review process

available to parties following a Bureau ruling or an ALJ decision in a

matter referred by the Bureau. This includes the procedures for

interlocutory review, petitions for reconsideration, and applications

for review.

7. Although not a change to the part 76 rules, the Commission will

change its public notice format to provide the public with additional

information regarding proceedings filed with the Commission. The

Commission is currently upgrading to a new computer system which will

have the capacity to store and display more information about each

filing. The improved public notice format will be implemented once the

new case tracking system becomes operational.

8. Additionally, the Order adopts a procedural amendment clarifying

essentially similar provisions related to the one-year limitations

period for filing program access (Sec. 76.1003(g)(2)), program carriage

(Sec. 76.1302(f)(2)), and open video system complaints

(Sec. 76.1513(h)(2)). These sections now provide that complaints based

on allegedly discriminatory offers to the complainant must be unrelated

to any existing contract between the complainant and the party making

such offer. This amendment is intended to clarify that an offer to

amend an existing contract that has been in effect for more than one

year does not reopen the existing contract to complaints that the

provisions thereof are discriminatory.

Final Regulatory Flexibility Analysis

9. As required by the Regulatory Flexibility Act (RFA), an Initial

Regulatory Flexibility Analysis (``IRFA'') was incorporated into the

Notice in this proceeding. The Commission sought written public comment

on the possible impact of the proposed policies and rules on small

entities in the Notice, including comments on the IRFA. This Final

Regulatory Flexibility Analysis (``FRFA'') in this Report and Order

conforms to the RFA.

10. Need for Action and Objectives of the Rules. Section 11 of the

1996 Telecommunications Act requires the Commission to conduct a

biennial review of regulations that apply to operations and activities

of any provider of telecommunications service and to repeal or modify

any regulation it determines to be no longer in the public interest.

Although Section 11 does not specifically refer to cable operators, the

Commission has determined that the first biennial review presents an

excellent opportunity for a thorough examination of all of the

Commission's regulations.

11. Summary of Significant Issues Raised by the Public Comments in

Response to the IRFA. One comment was filed specifically in response to

the IRFA. The commenter disagrees with the conclusion in the IRFA that

the number of small cable businesses affected by the Commission's rules

has declined since 1995.

12. Description and Estimate of the Number of Small Entities to

Which the Rules Will Apply. The RFA directs the Commission to provide a

description of and, where feasible, an estimate of the number of small

entities that might be affected by the rules here adopted. The RFA

defines the term ``small entity'' as having the same meaning as the

terms ``small business,'' ``small organization,'' and ``small

governmental jurisdiction.'' In addition, the term ``small business''

has the same meaning as the term ``small business concern'' under the

Small Business Act. Under the Small Business Act, a small business

concern is one which: (a) Is independently owned and operated; (b) is

not dominant in its field of operation; and (c) satisfies any

additional criteria established by the SBA. The rules adopted in the

Report and Order will affect cable systems, multipoint multichannel

distribution systems, direct broadcast satellites, home satellite dish

manufacturers, open video systems, satellite master antenna television,

local multipoint distribution systems, program producers and

distributors, and television stations. Below set forth are the general

SBA and FCC cable small size standards. Each service is addresses

individually to provides a more precise estimate of small entities.

Also described are program producers and distributors.

13. SBA Definitions for Cable and Other Pay Television Services:

The SBA has developed a definition of small entities for cable and

other pay television services, which includes all such companies

generating $11 million or less in annual receipts. This definition

includes cable system operators, closed circuit television services,

direct broadcast satellite services, multipoint distribution systems,

satellite master antenna systems and subscription television services.

According to the Census Bureau data from 1992, there were approximately

1,758 total cable and other pay television services and 1,423 had less

than $11 million in revenue.

14. Additional Cable System Definitions: In addition, the

Commission has developed, with SBA's approval, our own definition of a

small cable system operator for the purposes of rate regulation. Under

the

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Commission's rules, a ``small cable company'' is one serving no more

than 400,000 subscribers nationwide. The Commission estimated that

there were 1439 cable operators that qualified as small cable companies

at the end of 1995. Since then, some of those companies may have grown

to serve over 400,000 subscribers, and others may have been involved in

transactions that caused them to be combined with other cable

operators. Consequently, the Commission estimates that there are fewer

than 1439 small entity cable system operators that may be affected by

the decisions and rules adopted. The Commission concludes that only a

small percentage of these entities currently provide qualifying

``telecommunications services'' as required by the Communications Act

and, therefore, estimates that the number of such entities are

significantly fewer than noted.

15. The Communications Act also contains a definition of a small

cable system operator, which is ``a cable operator that, directly or

through an affiliate, serves in the aggregate fewer than 1% of all

subscribers in the United States and is not affiliated with any entity

or entities whose gross annual revenues in the aggregate exceed

$250,000,000.'' The Commission has determined that there are 61,700,000

cable subscribers in the United States. Therefore, the Commission found

that an operator serving fewer than 617,000 subscribers shall be deemed

a small operator, if its annual revenues, when combined with the total

annual revenues of all of its affiliates, do not exceed $250 million in

the aggregate. Based on available data, the number of cable operators

serving 617,000 subscribers or less totals 1450. Although it seems

certain that some of these cable system operators are affiliated with

entities whose gross annual revenues exceed $250,000,000, the

Commission is unable at this time to estimate with greater precision

the number of cable system operators that would qualify as small cable

operators under the definition in the Communications Act.

16. Multipoint Multichannel Distribution Systems (``MMDS''): The

Commission refined its definition of ``small entity'' for the auction

of MMDS as an entity that together with its affiliates has average

gross annual revenues that are not more than $40 million for the

preceding three calendar years. This definition of a small entity in

the context of MMDS auctions has been approved by the SBA.

17. The Commission completed its MMDS auction in March 1996 for

authorizations in 493 basic trading areas (``BTAs''). Of 67 winning

bidders, 61 qualified as small entities. Five bidders indicated that

they were minority-owned and four winners indicated that they were

women-owned businesses. MMDS is an especially competitive service, with

approximately 1573 previously authorized and proposed MMDS facilities.

Available information indicates that no MMDS facility generates revenue

in excess of $11 million annually. The Commission concludes that, for

purposes of this FRFA, there are approximately 1634 small MMDS

providers as defined by the SBA and the Commission's auction rules.

18. Direct Broadcast Satellite (``DBS''): Because DBS provides

subscription services, DBS falls within the SBA definition of cable and

other pay television services (SIC 4841). As of December 1996, there

were eight DBS licensees. The Notice concluded that no DBS operator

qualifies as a small entity. Since the publication of the Notice, more

information has become available. In light of the 1997 gross revenue

figures for the various DBS operators, the Commission restates its

conclusion that no DBS operator qualifies as a small entity.

19. Home Satellite Dish (``HSD''): The market for HSD service is

difficult to quantify. Indeed, the service itself bears little

resemblance to other MVPDs. HSD owners have access to more than 500

channels of programming placed on C-band satellites by programmers for

receipt and distribution by MVPDs, of which 350 channels are scrambled

and approximately 150 are unscrambled. HSD owners can watch unscrambled

channels without paying a subscription fee. To receive scrambled

channels, however, an HSD owner must purchase an integrated receiver-

decoder from an equipment dealer and pay a subscription fee to an HSD

programming packager. Thus, HSD users include: (1) Viewers who

subscribe to a packaged programming service, which affords them access

to most of the same programming provided to subscribers of other MVPDs;

(2) viewers who receive only non-subscription programming; and (3)

viewers who receive satellite programming services illegally without

subscribing.

20. According to the most recently available information, there are

approximately 20 to 25 program packagers nationwide offering packages

of scrambled programming to retail consumers. These program packagers

provide subscriptions to approximately 2,184,470 subscribers

nationwide. This is an average of about 77,163 subscribers per program

packager. This is substantially smaller than the 400,000 subscribers

used in the Commission's definition of a small multiple system operator

(``MSO'').

21. Satellite Master Antenna Television (``SMATVs''): Industry

sources estimate that approximately 5200 SMATV operators were providing

service as of December 1995. Other estimates indicate that SMATV

operators serve approximately 1.162 million residential subscribers as

of June 30, 1997. The ten largest SMATV operators together pass 848,450

units. Assuming that these SMATV operators serve 50% of the units

passed, the ten largest SMATV operators serve approximately 40% of the

total number of SMATV subscribers. Because these operators are not rate

regulated, they are not required to file financial data with the

Commission. Furthermore, the Commission is not aware of any privately

published financial information regarding these operators. Based on the

estimated number of operators and the estimated number of units served

by the largest ten SMATVs, the Commission concludes that a substantial

number of SMATV operators qualify as small entities.

22. Local Multipoint Distribution System (``LMDS''): Unlike the

above pay television services, LMDS technology and spectrum allocation

will allow licensees to provide wireless telephony, data, and/or video

services. A LMDS provider is not limited in the number of potential

applications that will be available for this service. Therefore, the

definition of a small LMDS entity may be applicable to both cable and

other pay television (SIC 4841) and/or radiotelephone communications

companies (SIC 4812). The SBA approved definition for cable and other

pay services that qualify as a small business is defined above. A small

radiotelephone entity is one with 1500 employees or fewer. However, for

the purposes of this Report and Order, only an estimate of LMDS video

service providers is included.

23. An auction for licenses to operate LMDS systems was recently

completed by the Commission. The vast majority of the LMDS license

auction winners were small businesses under the SBA's definition of

cable and pay television (SIC 4841). The Commission adopted a small

business definition for entities bidding for LMDS licenses as an entity

that, together with affiliates and controlling principles, has average

gross revenues not exceeding $40 million for each of the three

preceding years. The Commission has not yet received approval by the

SBA for this definition.

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24. There is only one company, CellularVision, that is currently

providing LMDS video services. In the IRFA, the Commission assumed that

CellularVision was a small business under both the SBA definition and

our auction rules. No commenters addressed the tentative conclusions

reached in the Notice. Accordingly, the Commission affirms the

tentative conclusion that a majority of the potential LMDS licensees

will be small entities, as that term is defined by the SBA.

25. Open Video System (``OVS''): The Commission has certified 15

OVS operators. Of these nine, only two are providing service. On

October 17, 1996, Bell Atlantic received approval for its certification

to convert its Dover, New Jersey Video Dialtone (``VDT'') system to

OVS. Bell Atlantic subsequently purchased the division of Futurevision

which had been the only operating program package provider on the Dover

system, and has begun offering programming on this system using these

resources. Metropolitan Fiber Systems was granted certifications on

December 9, 1996, for the operation of OVS systems in Boston and New

York, both of which are being used to provide programming. Bell

Atlantic and Metropolitan Fiber Systems have sufficient revenues to

assure us that they do not qualify as small business entities. Little

financial information is available for the other entities authorized to

provide OVS that are not yet operational. One OVS licensee may qualify

as a small business concern. Given that other entities have been

authorized to provide OVS service but have not yet begun to generate

revenues, the Commission concludes that at least some of the OVS

operators qualify as small entities.

26. Program Producers and Distributors: The Commission has not

developed a definition of small entities applicable to producers or

distributors of television programs and, therefore, will utilize the

SBA classifications of Motion Picture and Video Tape Production (SIC

7812), Motion Picture and Video Tape Distribution (SIC 7822), and

Theatrical Producers (Except Motion Pictures) and Miscellaneous

Theatrical Services (SIC 7922). These SBA definitions provide that a

small entity in the television programming industry is an entity with

$21.5 million or less in annual receipts for SIC 7812 and 7822, and $5

million or less in annual receipts for SIC 7922. The 1992 Bureau of the

Census data indicate the following: (1) There were 7265 U.S. firms

classified as Motion Picture and Video Production (SIC 7812), and that

6987 of these firms had $16,999 million or less in annual receipts and

7002 of these firms had $24,999 million or less in annual receipts; (2)

there were 1139 U.S. firms classified as Motion Picture and Tape

Distribution (SIC 7822), and that 1007 of these firms had $16,999

million or less in annual receipts and 1013 of these firms had $24,999

million or less in annual receipts; and (3) there were 5671 U.S. firms

classified as Theatrical Producers and Services (SIC 7922), and that

5627 of these firms had less than $5 million in annual receipts.

27. Each of these SIC categories is very broad and includes firms

that may be engaged in various industries including television.

Specific figures are not available as to how many of these firms

exclusively produce and/or distribute programming for television or how

many are independently owned and operated. Consequently, the Commission

concludes that there are approximately 6987 small entities that produce

and distribute taped television programs, 1013 small entities primarily

engaged in the distribution of taped television programs, and 5627

small producers of live television programs that may be affected by the

rules adopted in this Report and Order.

28. Television Stations: The rules will apply to television

broadcasting licensees, and potential licensees of television service.

The Small Business Administration defines a television broadcasting

station that has no more than $10.5 million in annual receipts as a

small business. Television broadcasting stations consist of

establishments primarily engaged in broadcasting visual programs by

television to the public, except cable and other pay television

services. Included in this industry are commercial, religious,

educational, and other television stations. Also included are

establishments primarily engaged in television broadcasting and which

produce taped television program materials. Separate establishments

primarily engaged in producing taped television program materials are

classified under another SIC number (SIC 7812). There were 1,509

television stations operating in the nation in 1992. That number has

remained fairly constant as indicated by the approximately 1,579

operating full power television broadcasting stations in the nation as

of May 31, 1998. In addition, as of October 31, 1997, there were 1,880

LPTV stations that may also be affected by the Commission's rules. For

1992, the number of television stations that produced less than $10.0

million in revenue was 1,155 establishments.

29. Thus, the rules will affect many of the approximately 1,579

television stations; approximately 1,200 of those stations are

considered small businesses. These estimates may overstate the number

of small entities since the revenue figures on which they are based do

not include or aggregate revenues from non-television affiliated

companies.

30. In addition to owners of operating television stations, any

entity who seeks or desires to obtain a television broadcast license

may be affected by the rules contained in this item. The number of

entities that may seek to obtain a television broadcast license is

unknown.

31. Description of Reporting, Recordkeeping and Other Compliance

Requirements. This analysis examines the costs and administrative

burdens associated with our rules and requirements. The rules adopted

do not add additional compliance requirements, except in that a party

involved in a non-rulemaking part 76 proceeding may be required to

participate in a status conference. The Commission believes, however,

that this requirement would not necessitate significant additional

costs or skills beyond those already utilized in the ordinary course of

business. The Commission believes that this requirement will be

beneficial to participants. The status conference is a useful mechanism

for achieving a swift conclusion to disputes. The rules provide that

such conferences may be conducted over the telephone, thereby

eliminating the need for parties to incur travel expenses to attend the

conference.

32. Steps Taken to Minimize Significant Economic Impact On Small

Entities and Significant Alternatives Considered. The Commission

believes that the rules implemented to streamline the pleading

requirements associated with part 76 filings, make the amended part 76

easier to use than the current rules. Several rules have been shortened

or eliminated in order to make the part 76 rules more concise.

Additionally, where possible, the procedural requirements for part 76

filings have been standardized.

33. It is ordered that, pursuant to authority found in sections

4(i)-(j) of the Communications Act of 1934, as amended, 47 U.S.C.

154(i)-(j), the Commission's rules are hereby amended as set forth

below.

34. It is further ordered that the rules as amended shall become

effective upon approval by OMB.

35. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall

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send a copy of this Report and Order, including the Final Regulatory

Flexibility Analysis, to the Chief Counsel for Advocacy of the Small

Business Administration.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal

Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

1. The authority citation for part 76 is revised to read as

follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,

307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,

534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556,

558, 560, 561, 571, 572, 573.

1a. The heading of part 76 is revised to read as set forth above.

2. Section 76.6 is added to read as follows:

Sec. 76.6 General pleading requirements.

(a) General pleading requirements. All written submissions, both

substantive and procedural, must conform to the following standards:

(1) A pleading must be clear, concise, and explicit. All matters

concerning a claim, defense or requested remedy, should be pleaded

fully and with specificity.

(2) Pleadings must contain facts which, if true, are sufficient to

warrant a grant of the relief requested.

(3) Facts must be supported by relevant documentation or affidavit.

(4) The original of all pleadings and submissions by any party

shall be signed by that party, or by the party's attorney. Complaints

must be signed by the complainant. The signing party shall state his or

her address and telephone number and the date on which the document was

signed. Copies should be conformed to the original. Each submission

must contain a written verification that the signatory has read the

submission and to the best of his or her knowledge, information and

belief formed after reasonable inquiry, it is well grounded in fact and

is warranted by existing law or a good faith argument for the

extension, modification or reversal of existing law; and that it is not

interposed for any improper purpose. If any pleading or other

submission is signed in violation of this provision, the Commission

shall upon motion or upon its own initiative impose appropriate

sanctions.

(5) Legal arguments must be supported by appropriate judicial,

Commission, or statutory authority. Opposing authorities must be

distinguished. Copies must be provided of all non-Commission

authorities relied upon which are not routinely available in national

reporting systems, such as unpublished decisions or slip opinions of

courts or administrative agencies.

(6) Parties are responsible for the continuing accuracy and

completeness of all information and supporting authority furnished in a

pending complaint proceeding. Information submitted, as well as

relevant legal authorities, must be current and updated as necessary

and in a timely manner at any time before a decision is rendered on the

merits of the complaint.

(b) Copies to be Filed. Unless otherwise directed by specific

regulation or the Commission, an original and two (2) copies of all

pleadings shall be filed in accordance with Sec. 0.401(a) of this

chapter, except that petitions requiring fees as set forth at part 1,

subpart G of this chapter must be filed in accordance with

Sec. 0.401(b) of this chapter.

(c) Frivolous pleadings. It shall be unlawful for any party to file

a frivolous pleading with the Commission. Any violation of this

paragraph shall constitute an abuse of process subject to appropriate

sanctions.

3. Section 76.7 is revised to read as follows:

Sec. 76.7 General special relief, waiver, enforcement, complaint, show

cause, forfeiture, and declaratory ruling procedures.

(a) Initiating pleadings. In addition to the general pleading

requirements, initiating pleadings must adhere to the following

requirements:

(1) Petitions. On petition by any interested party, cable

television system operator, a multichannel video programming

distributor, local franchising authority, or an applicant, permittee,

or licensee of a television broadcast or translator station, the

Commission may waive any provision of this part 76, impose additional

or different requirements, issue a ruling on a complaint or disputed

question, issue a show cause order, revoke the certification of the

local franchising authority, or initiate a forfeiture proceeding.

Petitions may be submitted informally by letter.

(2) Complaints. Complaints shall conform to the relevant rule

section under which the complaint is being filed.

(3) Certificate of service. Petitions and Complaints shall be

accompanied by a certificate of service on any cable television system

operator, franchising authority, station licensee, permittee, or

applicant, or other interested person who is likely to be directly

affected if the relief requested is granted.

(4) Statement of relief requested. (i) The petition or complaint

shall state the relief requested. It shall state fully and precisely

all pertinent facts and considerations relied on to demonstrate the

need for the relief requested and to support a determination that a

grant of such relief would serve the public interest.

(ii) The petition or complaint shall set forth all steps taken by

the parties to resolve the problem, except where the only relief sought

is a clarification or interpretation of the rules.

(iii) A petition or complaint may, on request of the filing party,

be dismissed without prejudice as a matter of right prior to the

adoption date of any final action taken by the Commission with respect

to the petition or complaint. A request for the return of an initiating

document will be regarded as a request for dismissal.

(5) Failure to prosecute. Failure to prosecute petition or

complaint, or failure to respond to official correspondence or request

for additional information, will be cause for dismissal. Such dismissal

will be without prejudice if it occurs prior to the adoption date of

any final action taken by the Commission with respect to the initiating

pleading.

(b) Responsive pleadings. In addition to the general pleading

requirements, responsive pleadings must adhere to the following

requirements:

(1) Comments/oppositions to petitions. Unless otherwise directed by

the Commission, interested persons may submit comments or oppositions

within twenty (20) days after the date of public notice of the filing

of such petition. Comments or oppositions shall be served on the

petitioner and on all persons listed in petitioner's certificate of

service, and shall contain a detailed full showing, supported by

affidavit, of any facts or considerations relied on.

(2) Answers to complaints. (i) Unless otherwise directed by the

Commission, any party who is served with a complaint shall file an

answer in accordance with the following, and the relevant rule section

under which the complaint is being filed.

(ii) The answer shall be filed within 20 days of service of the

complaint,

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unless another period is set forth in the relevant rule section.

(iii) The answer shall advise the parties and the Commission fully

and completely of the nature of any and all defenses, and shall respond

specifically to all material allegations of the complaint. Collateral

or immaterial issues shall be avoided in answers and every effort

should be made to narrow the issues. Any party against whom a complaint

is filed failing to file and serve an answer within the time and in the

manner prescribed by these rules may be deemed in default and an order

may be entered against defendant in accordance with the allegations

contained in the complaint.

(iv) The answer shall admit or deny the averments on which the

adverse party relies. If the defendant is without knowledge or

information sufficient to form a belief as to the truth of an averment,

the defendant shall so state and this has the effect of a denial. When

a defendant intends in good faith to deny only part of an averment, the

answer shall specify so much of it as is true and shall deny only the

remainder. The defendant may make its denials as specific denials of

designated averments or paragraphs, or may generally deny all the

averments except such designated averments or paragraphs as the

defendant expressly admits. When the defendant intends to controvert

all averments, the defendant may do so by general denial.

(v) Averments in a complaint are deemed to be admitted when not

denied in the answer.

(c) Reply. In addition to the general pleading requirements, reply

comments and replies must adhere to the following requirements:

(1) The petitioner or complainant may file a reply to a responsive

pleading which shall be served on all persons who have filed pleadings

and shall also contain a detailed full showing, supported by affidavit,

of any additional facts or considerations relied on. Unless expressly

permitted by the Commission, reply comments and replies to an answer

shall not contain new matters.

(2) Failure to reply will not be deemed an admission of any

allegations contained in the responsive pleading, except with respect

to any affirmative defense set forth therein.

(3) Unless otherwise directed by the Commission or the relevant

rule section, comments and replies to answers must be filed within ten

(10) days after submission of the responsive pleading.

(d) Motions. Except as provided in this section, or upon a showing

of extraordinary circumstances, additional motions or pleadings by any

party will not be accepted.

(e) Additional procedures and written submissions. (1) The

Commission may specify other procedures, such as oral argument or

evidentiary hearing directed to particular aspects, as it deems

appropriate. In the event that an evidentiary hearing is required, the

Commission will determine, on the basis of the pleadings and such other

procedures as it may specify, whether temporary relief should be

afforded any party pending the hearing and the nature of any such

temporary relief.

(2) The Commission may require the parties to submit any additional

information it deems appropriate for a full, fair, and expeditious

resolution of the proceeding, including copies of all contracts and

documents reflecting arrangements and understandings alleged to violate

the requirements set forth in the Communications Act and in this part,

as well as affidavits and exhibits.

(3) The Commission may, in its discretion, require the parties to

file briefs summarizing the facts and issues presented in the pleadings

and other record evidence.

(i) These briefs shall contain the findings of fact and conclusions

of law which that party is urging the Commission to adopt, with

specific citations to the record, and supported by relevant authority

and analysis.

(ii) Any briefs submitted shall be filed concurrently by both the

complainant and defendant at such time as is designated by the staff.

Such briefs shall not exceed fifty (50) pages.

(iii) Reply briefs may be submitted by either party within twenty

(20) days from the date initial briefs are due. Reply briefs shall not

exceed thirty (30) pages.

(f) Discovery. (1) The Commission staff may in its discretion order

discovery limited to the issues specified by the Commission. Such

discovery may include answers to written interrogatories, depositions

or document production.

(2) The Commission staff may in its discretion direct the parties

to submit discovery proposals, together with a memorandum in support of

the discovery requested. Such discovery requests may include answers to

written interrogatories, document production or depositions. The

Commission staff may hold a status conference with the parties,

pursuant to Sec. 76.8 of this part, to determine the scope of

discovery, or direct the parties regarding the scope of discovery. If

the Commission staff determines that extensive discovery is required or

that depositions are warranted, the staff may advise the parties that

the proceeding will be referred to an administrative law judge in

accordance with paragraph (g) of this section.

(g) Referral to administrative law judge. (1) After reviewing the

pleadings, and at any stage of the proceeding thereafter, the

Commission staff may, in its discretion, designate any proceeding or

discrete issues arising out of any proceeding for an adjudicatory

hearing before an administrative law judge.

(2) Before designation for hearing, the staff shall notify, either

orally or in writing, the parties to the proceeding of its intent to so

designate, and the parties shall be given a period of ten (10) days to

elect to resolve the dispute through alternative dispute resolution

procedures, or to proceed with an adjudicatory hearing. Such election

shall be submitted in writing to the Commission.

(3) Unless otherwise directed by the Commission, or upon motion by

the Cable Services Bureau Chief, the Cable Services Bureau Chief shall

not be deemed to be a party to a proceeding designated for a hearing

before an administrative law judge pursuant to this paragraph.

(h) System community units outside the Contiguous States. On a

finding that the public interest so requires, the Commission may

determine that a system community unit operating or proposing to

operate in a community located outside of the 48 contiguous states

shall comply with provisions of subparts D, F, and G of this part in

addition to the provisions thereof otherwise applicable.

(i) Commission ruling. The Commission, after consideration of the

pleadings, may determine whether the public interest would be served by

the grant, in whole or in part, or denial of the request, or may issue

a ruling on the complaint or dispute, issue an order to show cause, or

initiate a forfeiture proceeding.

Notes 1 through 4 to Sec. 76.7:

Note 1: After issuance of an order to show cause pursuant to

this section, the rules of procedure in Title 47, part 1, subpart A,

Secs. 1.91-1.95 of this chapter shall apply.

Note 2: Nothing in this section is intended to prevent the

Commission from initiating show cause or forfeiture proceedings on

its own motion; Provided, however, that show cause proceedings and

forfeiture proceedings pursuant to Sec. 1.80(g) of this chapter will

not be initiated by such motion until the affected parties are given

an opportunity to respond to the Commission's charges.

Note 3: Forfeiture proceedings are generally nonhearing matters

conducted pursuant to the provisions of Sec. 1.80(f) of this

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chapter (Notice of Apparent Liability). Petitioners who contend that

the alternative hearing procedures of Sec. 1.80(g) of this chapter

should be followed in a particular case must support this contention

with a specific showing of the facts and considerations relied on.

Note 4: To the extent a conflict is perceived between the

general pleading requirements of this section, and the procedural

requirements of a specific section, the procedural requirements of

the specific section should be followed.

4. Section 76.8 is revised to read as follows:

Sec. 76.8 Status conference.

(a) In any proceeding subject to the part 76 rules, the Commission

staff may in its discretion direct the attorneys and/or the parties to

appear for a conference to consider:

(1) Simplification or narrowing of the issues;

(2) The necessity for or desirability of amendments to the

pleadings, additional pleadings, or other evidentiary submissions;

(3) Obtaining admissions of fact or stipulations between the

parties as to any or all of the matters in controversy;

(4) Settlement of the matters in controversy by agreement of the

parties;

(5) The necessity for and extent of discovery, including objections

to interrogatories or requests for written documents;

(6) The need and schedule for filing briefs, and the date for any

further conferences; and

(7) Such other matters that may aid in the disposition of the

proceeding.

(b) Any party may request that a conference be held at any time

after an initiating document has been filed.

(c) Conferences will be scheduled by the Commission at such time

and place as it may designate, to be conducted in person or by

telephone conference call.

(d) The failure of any attorney or party, following advance notice

with an opportunity to be present, to appear at a scheduled conference

will be deemed a waiver and will not preclude the Commission from

conferring with those parties or counsel present.

(e) During a status conference, the Commission staff may issue oral

rulings pertaining to a variety of matters relevant to the conduct of

the proceeding including, inter alia, procedural matters, discovery,

and the submission of briefs or other evidentiary materials. These

rulings will be promptly memorialized in writing and served on the

parties. When such rulings require a party to take affirmative action

not subject to deadlines established by another provision of this

subpart, such action will be required within ten (10) days from the

date of the written memorialization unless otherwise directed by the

staff.

5. Section 76.9 is revised to read as follows:

Sec. 76.9 Confidentiality of proprietary information.

(a) Any materials filed in the course of a proceeding under this

provision may be designated as proprietary by that party if the party

believes in good faith that the materials fall within an exemption to

disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.

552(b). Any party asserting confidentiality for such materials shall so

indicate by clearly marking each page, or portion thereof, for which a

proprietary designation is claimed. If a proprietary designation is

challenged, the party claiming confidentiality will have the burden of

demonstrating, by a preponderance of the evidence, that the material

designated as proprietary falls under the standards for nondisclosure

enunciated in FOIA.

(b) Submissions containing information claimed to be proprietary

under this section shall be submitted to the Commission in confidence

pursuant to the requirements of Sec. 0.459 of this chapter and clearly

marked ``Not for Public Inspection.'' An edited version removing all

proprietary data shall be filed with the Commission for inclusion in

the public file within five (5) days from the date the unedited reply

is submitted, and shall be served on the opposing parties.

(c) Except as provided in paragraph (d) of this section, materials

marked as proprietary may be disclosed solely to the following persons,

only for use in the proceeding, and only to the extent necessary to

assist in the prosecution or defense of the case:

(i) Counsel of record representing the parties in the proceeding

and any support personnel employed by such attorneys;

(ii) Officers or employees of the parties in the proceeding who are

named by another party as being directly involved in the proceeding;

(iii) Consultants or expert witnesses retained by the parties;

(iv) The Commission and its staff; and

(v) Court reporters and stenographers in accordance with the terms

and conditions of this section.

(d) The Commission will entertain, subject to a proper showing, a

party's request to further restrict access to proprietary information

as specified by the party. The other parties will have an opportunity

to respond to such requests.

(e) The persons designated in paragraphs (c) and (d) of this

section shall not disclose information designated as proprietary to any

person who is not authorized under this section to receive such

information, and shall not use the information in any activity or

function other than the prosecution or defense of the case before the

Commission. Each individual who is provided access to the information

by the opposing party shall sign a notarized statement affirmatively

stating, or shall certify under penalty of perjury, that the individual

has personally reviewed the Commission's rules and understands the

limitations they impose on the signing party.

(f) No copies of materials marked proprietary may be made except

copies to be used by persons designated in paragraphs (c) and (d) of

this section. Each party shall maintain a log recording the number of

copies made of all proprietary material and the persons to whom the

copies have been provided.

(g) Upon termination of the complaint proceeding, including all

appeals and petitions, all originals and reproductions of any

proprietary materials, along with the log recording persons who

received copies of such materials, shall be provided to the producing

party. In addition, upon final termination of the proceeding, any notes

or other work product derived in whole or in part from the proprietary

materials of an opposing or third party shall be destroyed.

6. Section 76.10 is added to read as follows:

Sec. 76.10 Review.

(a) Interlocutory review. (1) Except as provided below, no party

may seek review of interlocutory rulings until a decision on the merits

has been issued by the staff or administrative law judge.

(2) Rulings listed in this paragraph are reviewable as a matter of

right. An application for review of such ruling may not be deferred and

raised as an exception to a decision on the merits.

(i) If the staff's ruling denies or terminates the right of any

person to participate as a party to the proceeding, such person, as a

matter of right, may file an application for review of that ruling.

(ii) If the staff's ruling requires production of documents or

other written evidence, over objection based on a claim of privilege,

the ruling on the claim of privilege is reviewable as a matter of

right.

(iii) If the staff's ruling denies a motion to disqualify a staff

person from participating in the proceeding, the ruling is reviewable

as a matter of right.

[[Page 6572]]

(b) Petitions for reconsideration. Petitions for reconsideration of

interlocutory actions by the Commission's staff or by an administrative

law judge will not be entertained. Petitions for reconsideration of a

decision on the merits made by the Commission's staff should be filed

in accordance with Secs. 1.104 through 1.106 of this chapter.

(c) Application for review. (1) Any party to a part 76 proceeding

aggrieved by any decision on the merits issued by the staff pursuant to

delegated authority may file an application for review by the

Commission in accordance with Sec. 1.115 of this chapter.

(2) Any party to a part 76 proceeding aggrieved by any decision on

the merits by an administrative law judge may file an appeal of the

decision directly with the Commission, in accordance with

Secs. 1.276(a) and 1.277(a) through (c) of this chapter, except that in

proceedings brought pursuant to Secs. 76.1003, 76.1302, and 76.1513 of

this part, unless a stay is granted by the Commission, the decision by

the administrative law judge will become effective upon release and

will remain in effect pending appeal.

7. Section 76.61 is amended by revising paragraphs (a)(3), (a)(4)

and (b), and adding (a)(5) to read as follows:

Sec. 76.61 Disputes concerning carriage.

(a) * * *

(3) A local commercial television station or qualified low power

television station that is denied carriage or channel positioning or

repositioning in accordance with the must-carry rules by a cable

operator may file a complaint with the Commission in accordance with

the procedures set forth in Sec. 76.7 of this part. In addition to the

requirements of Sec. 76.7 of this part, such complaint shall

specifically:

(i) Allege the manner in which such cable operator has failed to

meet its obligations and the basis for such allegations.

(ii) Be accompanied by the notice from the complainant to the cable

television system operator, and the cable television system operator's

response, if any. If no timely response was received, the complaint

shall so state.

(iii) Establish the complaint is being filed within the sixty-day

deadline stated in paragraph (a)(5) of this section.

(4) If the Commission determines that a cable operator has failed

to meet its must-carry obligations, the Commission shall order that,

within 45 days of such order or such other time period as the

Commission may specify, the cable operator reposition the complaining

station or, in the case of an obligation to carry a station, commence

or resume carriage of the station and continue such carriage for at

least 12 months. If the Commission determines that the cable operator

has fully met the must-carry requirements, it shall dismiss the

complaint.

(5) No must-carry complaint filed pursuant to paragraph (a) of this

section will be accepted by the Commission if filed more than sixty

(60) days after--

(i) The denial by a cable television system operator of request for

carriage or channel position contained in the notice required by

paragraph (a)(1) of this section, or

(ii) The failure to respond to such notice within the time period

allowed by paragraph (a)(2) of this section.

(b) Complaints regarding carriage of qualified local NCE television

stations. (1) Whenever a qualified local NCE television station

believes that a cable operator has failed to comply with the signal

carriage or channel positioning requirements, pursuant to Secs. 76.56

through 76.57 of this part, the station may file a complaint with the

Commission in accordance with the procedures set forth in Sec. 76.7 of

this part. In addition to the requirements of Sec. 76.7 of this part,

such complaint shall specifically:

(i) Allege the manner in which such cable operator has failed to

comply with such requirements and state the basis for such allegations.

(ii) Be accompanied by any relevant correspondence between the

complainant and the cable television system operator.

(2) If the Commission determines that a cable operator has failed

to meet its must-carry obligations, the Commission shall order that,

within 45 days of such order or such other period as the Commission may

specify, the cable operator reposition the complaining station or, in

the case of an obligation to carry a station, commence or resume

carriage of the station and continue such carriage for a period of time

the Commission deems appropriate for the specific case under

consideration. If the Commission determines that the cable operator has

fully met the must-carry requirements, it shall dismiss the complaint.

(3) With respect to must-carry complaints filed pursuant to

paragraph (b) of this section, such complaints may be filed at any time

the complainant believes that the cable television system operator has

failed to comply with the applicable provisions of subpart D of this

part.

8. Section 76.914 is amended by revising paragraph (c) to read as

follows:

Sec. 76.914 Revocation of certification.

* * * * *

(c) A cable operator may file a petition for special relief

pursuant to Sec. 76.7 of this part seeking revocation of a franchising

authority's certification.

* * * * *

9. Section 76.1003 is revised to read as follows:

Sec. 76.1003 Program access proceedings.

(a) Complaints. Any multichannel video programming distributor

aggrieved by conduct that it believes constitute a violation of the

regulations set forth in this subpart may commence an adjudicatory

proceeding at the Commission to obtain enforcement of the rules through

the filing of a complaint. The complaint shall be filed and responded

to in accordance with the procedures specified in Sec. 76.7 of this

part with the following additions or changes:

(b) Prefiling notice required. Any aggrieved multichannel video

programming distributor intending to file a complaint under this

section must first notify the potential defendant cable operator, and/

or the potential defendant satellite cable programming vendor or

satellite broadcast programming vendor, that it intends to file a

complaint with the Commission based on actions alleged to violate one

or more of the provisions contained in Secs. 76.1001 or 76.1002 of this

part. The notice must be sufficiently detailed so that its recipient(s)

can determine the specific nature of the potential complaint. The

potential complainant must allow a minimum of ten (10) days for the

potential defendant(s) to respond before filing a complaint with the

Commission.

(c) Contents of complaint. In addition to the requirements of

Sec. 76.7 of this part, a program access complaint shall contain:

(1) The type of multichannel video programming distributor that

describes complainant, the address and telephone number of the

complainant, whether the defendant is a cable operator, satellite

broadcast programming vendor or satellite cable programming vendor

(describing each defendant), and the address and telephone number of

each defendant;

(2) Evidence that supports complainant's belief that the defendant,

where necessary, meets the attribution standards for application of the

program access requirements;

(3) Evidence that the complainant competes with the defendant cable

operator, or with a multichannel video programming distributor that is

a customer of the defendant satellite cable

[[Page 6573]]

programming or satellite broadcast programming vendor;

(4) In complaints alleging discrimination, documentary evidence

such as a rate card or a programming contract that demonstrates a

differential in price, terms or conditions between complainant and a

competing multichannel video programming distributor or, if no

programming contract or rate card is submitted with the complaint, an

affidavit signed by an officer of complainant alleging that a

differential in price, terms or conditions exits, a description of the

nature and extent (if known or reasonably estimated by the complainant)

of the differential, together with a statement that defendant refused

to provide any further specific comparative information;

(5) If a programming contract or a rate card is submitted with the

complaint in support of the alleged violation, specific references to

the relevant provisions therein;

(6) In complaints alleging exclusivity violations:

(i) The identity of both the programmer and cable operator who are

parties to the alleged prohibited agreement,

(ii) Evidence that complainant can or does serve the area specified

in the complaint, and

(iii) Evidence that the complainant has requested to purchase the

relevant programming and has been refused or unanswered;

(7) In complaints alleging a violation of Sec. 76.1001 of this

part, evidence demonstrating that the behavior complained of has harmed

complainant.

(8) The complaint must be accompanied by appropriate evidence

demonstrating that the required notification pursuant to paragraph (a)

of this section has been made.

(d) Damages requests. (1) In a case where recovery of damages is

sought, the complaint shall contain a clear and unequivocal request for

damages and appropriate allegations in support of such claim in

accordance with the requirements of paragraph (d)(3) of this section.

(2) Damages will not be awarded upon a complaint unless

specifically requested. Damages may be awarded if the complaint

complies fully with the requirement of paragraph (d)(3) of this section

where the defendant knew, or should have known that it was engaging in

conduct violative of section 628.

(3) In all cases in which recovery of damages is sought, the

complainant shall include within, or as an attachment to, the

complaint, either:

(i) A computation of each and every category of damages for which

recovery is sought, along with an identification of all relevant

documents and materials or such other evidence to be used by the

complainant to determine the amount of such damages; or

(ii) An explanation of:

(A) The information not in the possession of the complaining party

that is necessary to develop a detailed computation of damages;

(B) The reason such information is unavailable to the complaining

party;

(C) The factual basis the complainant has for believing that such

evidence of damages exists; and

(D) A detailed outline of the methodology that would be used to

create a computation of damages when such evidence is available.

(e) Answer.

(1) Any cable operator, satellite cable programming vendor or

satellite broadcast programming vendor upon which a program access

complaint is served under this section shall answer within twenty (20)

days of service of the complaint, unless otherwise directed by the

Commission.

(2) An answer to an exclusivity complaint shall provide the

defendant's reasons for refusing to sell the subject programming to the

complainant. In addition, the defendant may submit its programming

contracts covering the area specified in the complaint with its answer

to refute allegations concerning the existence of an impermissible

exclusive contract. If there are no contracts governing the specified

area, the defendant shall so certify in its answer. Any contracts

submitted pursuant to this provision may be protected as proprietary

pursuant to Sec. 76.9 of this part.

(3) An answer to a discrimination complaint shall state the reasons

for any differential in prices, terms or conditions between the

complainant and its competitor, and shall specify the particular

justification set forth in Sec. 76.1002(b) of this part relied upon in

support of the differential.

(i) When responding to allegations concerning price discrimination,

except in cases in which the alleged price differential is de minimis

(less than or equal to five cents per subscriber or five percent,

whichever is greater), the defendant shall provide documentary evidence

to support any argument that the magnitude of the differential is not

discriminatory.

(ii) In cases involving a price differential of less than or equal

to five cents per subscriber or five percent, whichever is greater, the

answer shall identify the differential as de minimis and state that the

defendant is therefore not required to justify the magnitude of the

differential.

(iii) If the defendant believes that the complainant and its

competitor are not sufficiently similar, the answer shall set forth the

reasons supporting this conclusion, and the defendant may submit an

alternative contract for comparison with a similarly situated

multichannel video programming distributor that uses the same

distribution technology as the competitor selected for comparison by

the complainant. The answer shall state the defendant's reasons for any

differential between the prices, terms and conditions between the

complainant and such similarly situated distributor, and shall specify

the particular justifications in Sec. 76.1002(b) of this part relied

upon in support of the differential. The defendant shall also provide

with its answer written documentary evidence to support its

justification of the magnitude of any price differential between the

complainant and such similarly situated distributor that is not de

minimis.

(4) An answer to a complaint alleging an unreasonable refusal to

sell programming shall state the defendant's reasons for refusing to

sell to the complainant, or for refusing to sell to the complainant on

the same terms and conditions as complainant's competitor, and shall

specify why the defendant's actions are not discriminatory.

(f) Reply. Within fifteen (15) days after service of an answer,

unless otherwise directed by the Commission, the complainant may file

and serve a reply which shall be responsive to matters contained in the

answer and shall not contain new matters.

(g) Time limit on filing of complaints. Any complaint filed

pursuant to this subsection must be filed within one year of the date

on which one of the following events occurs:

(1) The satellite cable programming or satellite broadcast

programming vendor enters into a contract with the complainant that the

complainant alleges to violate one or more of the rules contained in

this subpart; or

(2) The satellite cable programming or satellite broadcast

programming vendor offers to sell programming to the complainant

pursuant to terms that the complainant alleges to violate one or more

of the rules contained in this subpart, and such offer to sell

programming is unrelated to any existing contract between the

complainant and the satellite cable programming or satellite broadcast

programming vendor; or

[[Page 6574]]

(3) The complainant has notified a cable operator, or a satellite

cable programming vendor or a satellite broadcast programming vendor

that it intends to file a complaint with the Commission based on a

request to purchase or negotiate to purchase satellite cable

programming or satellite broadcast programming, or has made a request

to amend an existing contract pertaining to such programming pursuant

to Sec. 76.1002(f) of this part that has been denied or unacknowledged,

allegedly in violation of one or more of the rules contained in this

subpart.

(h) Remedies for violations--(1) Remedies authorized. Upon

completion of such adjudicatory proceeding, the Commission shall order

appropriate remedies, including, if necessary, the imposition of

damages, and/or the establishment of prices, terms, and conditions for

the sale of programming to the aggrieved multichannel video programming

distributor. Such order shall set forth a timetable for compliance, and

shall become effective upon release.

(2) Additional sanctions. The remedies provided in paragraph (h)(1)

of this section are in addition to and not in lieu of the sanctions

available under title V or any other provision of the Communications

Act.

(3) Imposition of damages. (i) Bifurcation. In all cases in which

damages are requested, the Commission may bifurcate the program access

violation determination from any damage adjudication.

(ii) Burden of proof. The burden of proof regarding damages rests

with the complainant, who must demonstrate with specificity the damages

arising from the program access violation. Requests for damages that

grossly overstate the amount of damages may result in a Commission

determination that the complainant failed to satisfy its burden of

proof to demonstrate with specificity the damages arising from the

program access violation.

(iii) Damages adjudication. (A) The Commission may, in its

discretion, end adjudication of damages with a written order

determining the sufficiency of the damages computation submitted in

accordance with paragraph (d)(3)(i) of this section or the damages

computation methodology submitted in accordance with paragraph

(d)(3)(ii)(D) of this section, modifying such computation or

methodology, or requiring the complainant to resubmit such computation

or methodology.

(1) Where the Commission issues a written order approving or

modifying a damages computation submitted in accordance with paragraph

(d)(3)(i) of this section, the defendant shall recompense the

complainant as directed therein.

(2) Where the Commission issues a written order approving or

modifying a damages computation methodology submitted in accordance

with paragraph (d)(3)(ii)(D) of this section, the parties shall

negotiate in good faith to reach an agreement on the exact amount of

damages pursuant to the Commission-mandated methodology.

(B) Within thirty days of the issuance of a paragraph (d)(3)(ii)(D)

of this section damages methodology order, the parties shall submit

jointly to the Commission either:

(1) A statement detailing the parties' agreement as to the amount

of damages;

(2) A statement that the parties are continuing to negotiate in

good faith and a request that the parties be given an extension of time

to continue negotiations; or

(3) A statement detailing the bases for the continuing dispute and

the reasons why no agreement can be reached.

(C)(1) In cases in which the parties cannot resolve the amount of

damages within a reasonable time period, the Commission retains the

right to determine the actual amount of damages on its own, or through

the procedures described in paragraph (h)(3)(iii)(C)(2) of this

section.

(2) Issues concerning the amount of damages may be designated by

the Chief, Cable Services Bureau for hearing before, or, if the parties

agree, submitted for mediation to, a Commission Administrative Law

Judge.

(D) Interest on the amount of damages awarded will accrue from

either the date indicated in the Commission's written order issued

pursuant to paragraph (h)(3)(iii)(A)(1) of this section or the date

agreed upon by the parties as a result of their negotiations pursuant

to paragraph (h)(3)(iii)(A)(2) of this section. Interest shall be

computed at applicable rates published by the Internal Revenue Service

for tax refunds.

10. Section 76.1302 is revised to read as follows:

Sec. 76.1302 Carriage agreement proceedings.

(a) Complaints. Any video programming vendor or multichannel video

programming distributor aggrieved by conduct that it believes

constitute a violation of the regulations set forth in this subpart may

commence an adjudicatory proceeding at the Commission to obtain

enforcement of the rules through the filing of a complaint. The

complaint shall be filed and responded to in accordance with the

procedures specified in Sec. 76.7 of this part with the following

additions or changes:

(b) Prefiling notice required. Any aggrieved video programming

vendor or multichannel video programming distributor intending to file

a complaint under this section must first notify the potential

defendant multichannel video programming distributor that it intends to

file a complaint with the Commission based on actions alleged to

violate one or more of the provisions contained in Sec. 76.1301 of this

part. The notice must be sufficiently detailed so that its recipient(s)

can determine the specific nature of the potential complaint. The

potential complainant must allow a minimum of ten (10) days for the

potential defendant(s) to respond before filing a complaint with the

Commission.

(c) Contents of complaint. In addition to the requirements of

Sec. 76.7 of this part, a carriage agreement complaint shall contain:

(1) The type of multichannel video programming distributor that

describes complainant, the address and telephone number of the

complainant, and the address and telephone number of each defendant;

(2) Evidence that supports complainant's belief that the defendant,

where necessary, meets the attribution standards for application of the

carriage agreement regulations;

(3) For complaints alleging a violation of Sec. 76.1301(c) of this

part, evidence that supports complainant's claim that the effect of the

conduct complained of is to unreasonably restrain the ability of the

complainant to compete fairly.

(4) The complaint must be accompanied by appropriate evidence

demonstrating that the required notification pursuant to paragraph (b)

of this section has been made.

(d) Answer. (1) Any multichannel video programming distributor upon

which a carriage agreement complaint is served under this section shall

answer within thirty (30) days of service of the complaint, unless

otherwise directed by the Commission.

(2) The answer shall address the relief requested in the complaint,

including legal and documentary support, for such response, and may

include an alternative relief proposal without any prejudice to any

denials or defenses raised.

(e) Reply. Within twenty (20) days after service of an answer,

unless otherwise directed by the Commission, the complainant may file

and serve a reply which shall be responsive to matters contained in the

answer and shall not contain new matters.

[[Page 6575]]

(f) Time limit on filing of complaints. Any complaint filed

pursuant to this subsection must be filed within one year of the date

on which one of the following events occurs:

(1) The multichannel video programming distributor enters into a

contract with a video programming distributor that a party alleges to

violate one or more of the rules contained in this section; or

(2) The multichannel video programming distributor offers to carry

the video programming vendor's programming pursuant to terms that a

party alleges to violate one or more of the rules contained in this

section, and such offer to carry programming is unrelated to any

existing contract between the complainant and the multichannel video

programming distributor; or

(3) A party has notified a multichannel video programming

distributor that it intends to file a complaint with the Commission

based on violations of one or more of the rules contained in this

section.

(g) Remedies for violations--(1) Remedies authorized. Upon

completion of such adjudicatory proceeding, the Commission shall order

appropriate remedies, including, if necessary, mandatory carriage of a

video programming vendor's programming on defendant's video

distribution system, or the establishment of prices, terms, and

conditions for the carriage of a video programming vendor's

programming. Such order shall set forth a timetable for compliance, and

shall become effective upon release, unless any order of mandatory

carriage would require the defendant multichannel video programming

distributor to delete existing programming from its system to

accommodate carriage of a video programming vendor's programming. In

such instances, if the defendant seeks review of the staff, or

administrative law judge decision, the order for carriage of a video

programming vendor's programming will not become effective unless and

until the decision of the staff or administrative law judge is upheld

by the Commission. If the Commission upholds the remedy ordered by the

staff or administrative law judge in its entirety, the defendant will

be required to carry the video programming vendor's programming for an

additional period equal to the time elapsed between the staff or

administrative law judge decision and the Commission's ruling, on the

terms and conditions approved by the Commission.

(2) Additional sanctions. The remedies provided in paragraph (g)(1)

of this section are in addition to and not in lieu of the sanctions

available under title V or any other provision of the Communications

Act.

11. In Section 76.1513, the heading, paragraphs (a), (d) through

(h) are revised and paragraphs (i) through (u) are removed to read as

follows:

Sec. 76.1513 Open video dispute resolution.

(a) Complaints. Any party aggrieved by conduct that it believes

constitute a violation of the regulations set forth in this part or in

section 653 of the Communications Act (47 U.S.C. 573) may commence an

adjudicatory proceeding at the Commission to obtain enforcement of the

rules through the filing of a complaint. The Commission shall resolve

any such dispute within 180 days after the filing of a complaint. The

complaint shall be filed and responded to in accordance with the

procedures specified in Sec. 76.7 of this part with the following

additions or changes.

* * * * *

(d) Contents of complaint. In addition to the requirements of

Sec. 76.7 of this part, an open video system complaint shall contain:

(1) The type of entity that describes complainant (e.g.,

individual, private association, partnership, or corporation), the

address and telephone number of the complainant, and the address and

telephone number of each defendant;

(2) If discrimination in rates, terms, and conditions of carriage

is alleged, documentary evidence shall be submitted such as a

preliminary carriage rate estimate or a programming contract that

demonstrates a differential in price, terms or conditions between

complainant and a competing video programming provider or, if no

programming contract or preliminary carriage rate estimate is submitted

with the complaint, an affidavit signed by an officer of complainant

alleging that a differential in price, terms or conditions exists, a

description of the nature and extent (if known or reasonably estimated

by the complainant) of the differential, together with a statement that

defendant refused to provide any further specific comparative

information;

Note to paragraph (d)(2): Upon request by a complainant, the

preliminary carriage rate estimate shall include a calculation of

the average of the carriage rates paid by the unaffiliated video

programming providers receiving carriage from the open video system

operator, including the information needed for any weighting of the

individual carriage rates that the operator has included in the

average rate.

(3) If a programming contract or a preliminary carriage rate

estimate is submitted with the complaint in support of the alleged

violation, specific references to the relevant provisions therein.

(4) The complaint must be accompanied by appropriate evidence

demonstrating that the required notification pursuant to paragraph (c)

of this section has been made.

(e) Answer.

(1) Any open video system operator upon which a complaint is served

under this section shall answer within thirty (30) days of service of

the complaint, unless otherwise directed by the Commission.

(2) An answer to a discrimination complaint shall state the reasons

for any differential in prices, terms or conditions between the

complainant and its competitor, and shall specify the particular

justification relied upon in support of the differential. Any documents

or contracts submitted pursuant to this paragraph may be protected as

proprietary pursuant to Sec. 76.9 of this part.

(f) Reply. Within twenty (20) days after service of an answer, the

complainant may file and serve a reply which shall be responsive to

matters contained in the answer and shall not contain new matters.

(g) Time limit on filing of complaints. Any complaint filed

pursuant to this subsection must be filed within one year of the date

on which one of the following events occurs

(1) The open video system operator enters into a contract with the

complainant that the complainant alleges to violate one or more of the

rules contained in this part; or

(2) The open video system operator offers to carry programming for

the complainant pursuant to terms that the complainant alleges to

violate one or more of the rules contained in this part, and such offer

to carry programming is unrelated to any existing contract between the

complainant and the open video system operator; or

(3) The complainant has notified an open video system operator that

it intends to file a complaint with the Commission based on a request

for such operator to carry the complainant's programming on its open

video system that has been denied or unacknowledged, allegedly in

violation of one or more of the rules contained in this part.

(h) Remedies for violations--(1) Remedies authorized. Upon

completion of such adjudicatory proceeding, the Commission shall order

appropriate

[[Page 6576]]

remedies, including, if necessary, the requiring carriage, awarding

damages to any person denied carriage, or any combination of such

sanctions. Such order shall set forth a timetable for compliance, and

shall become effective upon release.

(2) Additional sanctions. The remedies provided in paragraph (h)(1)

of this section are in addition to and not in lieu of the sanctions

available under title V or any other provision of the Communications

Act.

[FR Doc. 99-3139 Filed 2-9-99; 8:45 am]

BILLING CODE 6712-01-P